Delhi High Court: In an application under Order 39 Rules 1 and 2 of the Civil Procedure Code, 1908 (‘CPC’) for the grant of interim injunction, C. Hari Shankar, J., till the next date of hearing, restrained the defendant and others acting on its behalf from directly or indirectly using, advertising or publishing any video which reflected the trade mark , ‘WOW! MOMO’ or any other mark identical or deceptively similar to the plaintiff’s registered trade mark.
In 2008, the plaintiff, Wow Momo Food Private Limited had coined and adopted the trade mark . The plaintiff was also the registered proprietor of the marks , , and ‘WOW MOMO’. Further, vide business transfer agreement, the rights in the ‘WOW MOMO’ mark were transferred by Wow Foods Private Limited to the plaintiff. On 28-07-2023, the plaintiff had also registered the domain name www.wowmomo.com and the plaintiff’s website also contained the details about its business.
The plaintiff stated that the defendant was holding itself out as an agency which could provide franchises for the plaintiff. The plaintiff referred to a video clip, in which the defendant’s representatives offered franchises for the plaintiff’s business and stated that in order to become a franchisee of the plaintiff, any interested person could click the link provided in the video description and provide the required details, whereafter the plaintiff’s representative would get in touch with him.
After clicking the link, the viewers were directed to another website of the defendant which contained the details of the plaintiff’s alleged franchises. The plaintiff submitted that the defendant operated a website where it provided franchises for various Indian start-ups, including the plaintiff.
The plaintiff alleged that the use of the plaintiff’s registered trade mark ‘WOW MOMO’ on the defendant’s website constituted infringement of the plaintiff’s registered trade mark. The website also duped and mislead persons into believing that the plaintiff was providing franchises through the defendant and the general public was being defrauded by the defendant.
Thus, the plaintiff filed a suit seeking permanent injunction, restraining the defendant and others acting on its behalf from directly or indirectly using, offer or publishing any video with the trade mark , WOW! MOMO or any other mark similar to the plaintiff’s registered trade mark.
Analysis, Law, and Decision
The Court opined that the defendant was perpetrating a fraud by luring people into applying for becoming the plaintiff’s franchisees, when no such franchises was actually extended by the plaintiff. In the process, the defendant was also infringing the plaintiff’s registered trade mark by making unauthorised use of the mark. Thus, a case for the grant of interlocutory injunction was made out.
The Court opined that the balance of convenience was in the plaintiff’s favour for the grant of ex parte injunction and if the injunction was not granted ex parte, it would result in the defendant continuing to defraud the public at the plaintiff’s expense. The Court opined that the failure to grant ex parte injunction would result in irreparable prejudice to the plaintiff.
Thus, till the next date of hearing, the Court restrained the defendants and others acting on its behalf from directly or indirectly using, advertising or publishing any video which reflected the trade mark , ‘WOW! MOMO’ or any other mark identical or deceptively similar to the plaintiff’s registered trade mark. The Court directed the defendant to take down all the videos relating to the plaintiff or making any reference to the plaintiff’s registered trade mark , ‘WOW! MOMO’ from its YouTube channel and also take down all contents related to the plaintiff and all references to the plaintiff or to its mark , WOW! Momo from its website.
The Court further directed the defendant to disclose all the persons to whom the defendants had granted purported franchises of the plaintiff and amount that it had earned from such activities.
The matter would next be listed on 22-12-2023.
[Wow Momo Foods Pvt. Ltd. v. FranchiseByte, CS(COMM) 778 of 2023, Order dated 20-10-2023]
Advocates who appeared in this case :
For the Plaintiff: Ankur Sangal, Ankit Arvind, Kiratraj Sadana, Raghu Vinayak Sinha and Nidhi Pathak, Advocates;